Keene v. Wheatley
Opinion
CADWALADER, J.
The comedy called “Our American Cousin” is described by .the defendants, in their answer, as a “piece presenting, in suitable situations, those eccentricities usually attributed on the stage to Yankees.” It was never printed, and has never been published otherwise than through dramatic representation. It was composed in England, in 1852, by a dramatic author named Taylor, for performance in London at the Adelphi Theatre, of which Benjamin Webster was the manager. Mr. Taylor in that year sold it, or the right of performing it, to Mr. Webster. Insuperable difficulties of adaptation preventing its performance there, it was thrown back on Mr. Taylor’s hands. In 1855 it again became his absolute property, under an arrangement by which another drama of his composition was exchanged by him, for it, with Webster. The manuscript was then returned to him by Webster. As then written, it was in two acts. Mr. Taylor afterwards changed its arrangement by dividing it into three acts, and also made some trivial changes in the text. The manuscript was then fairly rewritten by his wife. In the autumn of 1858, he, for a valuable consideration, transferred all his literary and dramatic proprietary rights in it, for the United States, to the complainant, who is the lessee and proprietor of a theatre at New York. At the close of September, 1858, she received from his agent at New York the manuscript, in Mrs. Taylor’s handwriting. In the adaptation of the piece for its intended performance at the complainant’s theatre, she was assisted by Joseph Jefferson, an actor of her company, whom the defendants describe in their answer as a comedian of tact and talent. The principal part in the play, called the Yankee character, was allotted to him. The manuscript underwent curtailment and alteration, and received additions. More than three-fifths of the dialogue in one scene, and the fourth of another, were struck out, besides the erasure of many passages in other scenes. The addi[347] tions were chiefly in the character allotted to Mr. Jefferson. Those in this character, if not in the others, were made or suggested by himself. The curtailments and alterations, and some of the additions, were made with a lead pencil on the manuscript, which had been received by the complainant from the author. This manuscript having been written with ink, the author’s composition, in the precise form in which he transferred it, is distinctly preserved. The manuscript was exhibited to him when he was examined in this cause, under a commission to London. He then deposed that these alterations, made since he parted with it, were in a handwriting unknown to him. After the return of the commission, the manuscript thus altered was proved, by a witness examined at New York, to be the one from which the piece was played at the complainant’s theatre. Thus, in the text in ink we have the English composition, and in the writing in pencil we have some of the adaptations made under the complainant’s management. The text in ink having been written on one side only of the paper, many of the pencil additions are on the former blank sides. They are, in other instances, written over pencil erasures, or interlined. The former text is nowhere obliterated or illegible. The manuscript contains references to other additions, as having been introduced at New York. These must have been written on other sheets, which have not been produced in evidence.
The play, when thus altered and adapted, was acted at the complainant’s theatre, on the 18th of October, 1858. This was its first representation on any stage. The success of it was complete. Its performance was constantly repeated, with continued success, for many months.
The defendants are lessees and managers of a theatre in Philadelphia. They knew, between the 10th and the 17th of November, 1858, if not earlier, that the complainant asserted, under Mr. Taylor, as the author of this play, an exclusive literary proprietorship and sole right of dramatic representation of it in the United .States. They were informed that she was willing, for a price named by her agent, to sell to them the right [348] of acting it in Philadelphia. One of them replied that they already had it, and intended to play it in Philadelphia. The manner in which they procured it has been since disclosed.
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CADWALADER, J.
The comedy called “Our American Cousin” is described by .the defendants, in their answer, as a “piece presenting, in suitable situations, those eccentricities usually attributed on the stage to Yankees.” It was never printed, and has never been published otherwise than through dramatic representation. It was composed in England, in 1852, by a dramatic author named Taylor, for performance in London at the Adelphi Theatre, of which Benjamin Webster was the manager. Mr. Taylor in that year sold it, or the right of performing it, to Mr. Webster. Insuperable difficulties of adaptation preventing its performance there, it was thrown back on Mr. Taylor’s hands. In 1855 it again became his absolute property, under an arrangement by which another drama of his composition was exchanged by him, for it, with Webster. The manuscript was then returned to him by Webster. As then written, it was in two acts. Mr. Taylor afterwards changed its arrangement by dividing it into three acts, and also made some trivial changes in the text. The manuscript was then fairly rewritten by his wife. In the autumn of 1858, he, for a valuable consideration, transferred all his literary and dramatic proprietary rights in it, for the United States, to the complainant, who is the lessee and proprietor of a theatre at New York. At the close of September, 1858, she received from his agent at New York the manuscript, in Mrs. Taylor’s handwriting. In the adaptation of the piece for its intended performance at the complainant’s theatre, she was assisted by Joseph Jefferson, an actor of her company, whom the defendants describe in their answer as a comedian of tact and talent. The principal part in the play, called the Yankee character, was allotted to him. The manuscript underwent curtailment and alteration, and received additions. More than three-fifths of the dialogue in one scene, and the fourth of another, were struck out, besides the erasure of many passages in other scenes. The addi[347] tions were chiefly in the character allotted to Mr. Jefferson. Those in this character, if not in the others, were made or suggested by himself. The curtailments and alterations, and some of the additions, were made with a lead pencil on the manuscript, which had been received by the complainant from the author. This manuscript having been written with ink, the author’s composition, in the precise form in which he transferred it, is distinctly preserved. The manuscript was exhibited to him when he was examined in this cause, under a commission to London. He then deposed that these alterations, made since he parted with it, were in a handwriting unknown to him. After the return of the commission, the manuscript thus altered was proved, by a witness examined at New York, to be the one from which the piece was played at the complainant’s theatre. Thus, in the text in ink we have the English composition, and in the writing in pencil we have some of the adaptations made under the complainant’s management. The text in ink having been written on one side only of the paper, many of the pencil additions are on the former blank sides. They are, in other instances, written over pencil erasures, or interlined. The former text is nowhere obliterated or illegible. The manuscript contains references to other additions, as having been introduced at New York. These must have been written on other sheets, which have not been produced in evidence.
The play, when thus altered and adapted, was acted at the complainant’s theatre, on the 18th of October, 1858. This was its first representation on any stage. The success of it was complete. Its performance was constantly repeated, with continued success, for many months.
The defendants are lessees and managers of a theatre in Philadelphia. They knew, between the 10th and the 17th of November, 1858, if not earlier, that the complainant asserted, under Mr. Taylor, as the author of this play, an exclusive literary proprietorship and sole right of dramatic representation of it in the United .States. They were informed that she was willing, for a price named by her agent, to sell to them the right [348] of acting it in Philadelphia. One of them replied that they already had it, and intended to play it in Philadelphia. The manner in which they procured it has been since disclosed.
Joshua Silsbee, an American actor, was, in 1852, a performer in Mr. Webster’s theatrical company at the Adelphi Theatre in London. In 1852, Mr. Taylor, the author, was told by Silsbee that he had a copy of the manuscript in his possession, for the purpose of studying the Yankee character. Mr. Webster, then the proprietor of the play, deposed that he never gave to Silsbee a copy, or permission to have one; and that, if he had one, he must have obtained it surreptitiously. The defendants allege, in their answer, that the parts in the play were cast in England, when this character was allotted to Silsbee, whom they describe as capable of imparting to its those peculiar features and touches upon which the success of the play would, in a great measure, depend. They also allege that the piece was rehearsed at the Adelphi Theatre in 1852, prepara-torily to its intended performance there. These allegations appear to have been founded altogether in error. -The evidence is very distinct that it never was rehearsed in England. There is no evidence that anything was done with a view to its intended rehearsal, or that the characters were, in whole or in part, even provisionally cast. They cannot, consistently with the evidence, have been definitively cast with Mr. Webster’s concurrence. They possibly may have been provisionally, or conjecturally, cast by somebody, perhaps by Mr. Silsbee, who, as a performer at that theatre, expected to act the Yankee character, if the play should be represented there. But, according to Webster’s testimony, strengthened by that of Taylor, no part in the piece was ever allotted to Silsbee, or to any other actor in Webster’s company. Mr. Webster, as manager, was very strongly of opinion that Mr. Silsbee was incapable of performing the Yankee part with success. He had frequently failed at that theatre in such parts. In this unfavorable opinion, Mr. Taylor, the author, decidedly concurred. On this point, if the testimony had been impeached, it would have been confirmed by two letters of the year 1852, from Taylor to [349] Webster, concerning tKe difficulties of adapting this character to the capacity of Mr. Silsbee, or of any other performer at the Adelphi Theatre. This appears to have been a chief cause of its non-performance there. A copy of the manuscript must, however, have been in Mr. Silsbee’s possession, and have been retained by him. His possession of it, if ever known by Webster, must have been overlooked, and afterwards forgotten. Silsbee returned to the United States, bringing it with him, and subsequently, in 1855, when still in possession of it, died in California. It passed, after his death, into the possession of his widow, who subsequently became the wife of William Chapman. Mrs. Chapman has not been examined by the defendants as a witness, though the principal allegations of their answer must, if true, have depended upon information which cannot, probably, have been derived from any other person. Of the truth of these principal allegations, they cannot have had any direct knowledge of their own. There is no evidence that Mrs. Chapman’s attention, or that of any one else in the United States, was attracted to the copy of the manuscript in her possession, until after the public announcement, at New York, of the intended performance of the play at the complainant’s theatre. There is no reason to believe that the existence of, this’ copy was known to the defendants until after this announcement, or, indeed, until after the successful representation of the piece at her theatre. All that we really know concerning the copy is, that it passed, at about this time, into the possession of the defendants from that of Mrs. Chapman, and that Mr. Silsbee, her former husband, had obtained possession of it when he was a player in Webster’s company. The defendants now claim, as will be stated hereafter, a right of using this copy under a title which, they assert, was vested in Silsbee. As they assert this claim, his own statement, that he had possession of it for the purpose of studying a part in it, is evidence against them of the purpose for which he obtained the possession. Tire statement might have been true, though the parts were not cast, nor any definitive allotment of this part made. The inference from the testimony least unfavorable to his [350] memory is, that he may have thus obtained the copy in the first instance, and that his retention of it was afterwards overlooked, or disregarded. We cannot, upon the testimony, believe, or assume, that he retained the possession of it with any direct permission from Webster. But such permission, had it been obtained, would not have authorized Silsbee, if living, to make any public use of the copy, or to sanction any such use by others. Of course, no party coming, after his death, into possession of it under him, could give a legal sanction to any such use of it by the defendants.
After they had obtained this copy from Mrs. Chapman, the defendant Clarke procured from Mr. Jefferson the additions which he had, under the complainant’s management, introduced into his performance of the principal character. Whether Mr. Jefferson, besides the written additions to it which have been mentioned, introduced others which have never been written, relying, for the repetition of them, on his memory alone, is involved in some uncertainty. But if his additions were both written and unwritten, they were all, according to the proofs, communicated by him to the defendants and introduced by them into their performance of the play. One of the complainant’s interrogatories required the defendants to state fully what language or words Mr. Clarke thus obtained from Mr. Jefferson. Instead of making the statement thus required, they merely offered in their answer to state “all and singular the language or words” communicated if they should afterwards be required so to do. This offer does not entitle them to derive any benefit from their omission to make the disclosure. But, the complainant, not having excepted to the answer, cannot use their omission to supply any defect in her own proof. Their offer to make the statement shows, indeed, that nothing communicated by Mr. Jefferson was thought so unimportant as to have been lost by them for want of a memorial. That what he communicated to them included any additions which had not been previously written for the complainant is improbable. But it may nevertheless be true. If it be so, the written and unwritten additions must [351] have been combined in the production of dramatic effect. If the defendants can, in any view of the case, derive any benefit from an assumption that some of them were unwritten, the assumption should be made unless an inquiry by a master to ascertain the precise truth be directed. Such an inquiry will be dispensed with by assuming that some of the additions were unwritten. This assumption will, however, be made so far only as it may benefit the defendants. We will hereafter see that the decisions will, upon this view of the facts, be the same as if the additions were all written. But under one head the reasoning will not be the same.
The defendants, by thus obtaining the manuscript from Mrs. Chapman, and the additions from Mr. Jefferson, having enabled themselves to represent the play as it had been adapted and brought out by the complainant, announced its intended performance on the 22d and 23d of November, 1858, in a playbill headed: “First nights of the great new Comedy by Tom Taylor, author of ‘Still Waters Run Deep,’ etc., entitled Our American Cousin, now in the sixth week of its brilliant and triumphant career in New York. It will be presented after several weeks of most careful preparation.” It was performed according to this announcement, each of the defendants acting a part in it, the defendant Clarke performing the Yankee character with Jefferson’s adaptations. The defendants performed the piece repeatedly afterwards, with profitable results.
Before their first performance of it, each of them, and the actress of their company who performed the principal female character, had witnessed the performance at the complainant’s theatre. But they were not enabled to represent it at their own theatre through any impression of the words on their memory, or on that of any of the audience who had attended the complainant’s performances. The proof is, on the contrary, distinct, that the words were obtained by them from the manuscript procured from Mrs. Chapman, and through the communication, by Mr. Jefferson, of the additions.
The above quotation from the defendant’s playbill indi[352] cated that their purpose was not an independent representation of the play so much as a repetition of its performance at New York. Their effort was to imitate this performance as closely as possible. That they succeeded in producing a very close imitation appears from the testimony. A person engaged at the complainant’s theatre, in her constant employment, who had very often seen the play performed there, and says that he was familiar with it, was present at the defendant’s theatre on the first night of its performance in Philadelphia. Their playbill, already mentioned, containing a synopsis of the scenery and incidents, under more than one hundred heads, was before him. He deposes that he knew the play, word for word, as the performance went on. According to his testimony, the particular scene already mentioned, of which more than three-fifths had been expunged by the complainant, was wholly omitted by the defendants in their performance; but, except in this omission, the performances at each theatre were the same, or similar. Two particular instances, confirmatory of this evidence, may be regarded as characteristic of the imitative purpose of the whole performance. We have seen that, long after Mr. Silsbee left England, the arrangement of the play was changed by dividing it into three acts. The manuscript which he took away must have been that of a play in two acts. The defendants’ playbill shows that they adopted the change of arrangement by making the division into three acts; and their cross-interrogatories for the commission to London indicate their vigilance in observing this, and a minuter nonconformity in the texts of the manuscripts. The other instance was in one of the adaptations at New York. The words “Pontiac, Michigan,” had been there struck out from the English manuscript/and “Brattleboro’, Vermont,”' substituted with a pencil. Where this first occurs in the complainant’s manuscript, the defendants’ playbill, in describing the scene, contains the words “Brattleboro’, Vermont.”
Thus, at each theatre, the play, as acted, was the English author’s composition adapted by the complainant, with Jef[353] ferson’s additions, and some curtailments and alterations, to the stage in the United States. The defendants appear to have been careful to secure to themselves, before performing it, the means of acting it, as a whole, comformably to the method of its previous representation by the complainant.
She instituted the present proceeding in November, 1858, alleging an exclusive right in herself under the above derivation of title, and the statutes of the United States for the protection of general and dramatic literary property, and praying an injunction to restrain the defendants from representing the play, and an account of the profits, etc. When the piece was in the course of successful performance at both theatres, an application for a preliminary injunction was heard upon affidavits and counter affidavits. Upon a deposit by the defendants of a sum of money equal to the amount for which the complainant had been willing to license its performance by them, with a sufficient addition to cover costs, the court refused to grant an injunction in the primary stage of the cause.
It was afterwards heard upon bill, answer, and replication, depositions and papers read, and admissions.
The defendants, notwithstanding the public declaration in their playbill that Mr. Taylor was the author of the comedy, asserted in their answer that it was of the joint authorship of himself and Mr. Silsbee. Admitting that Mr. Taylor’s right and interest were transferred by him to Mr. Webster in 1852, they alleged that Webster, afterwards, for a valuable consideration, assigned it absolutely to Silsbee, who bequeathed his personal estate, in which it was included, to his widow, now Mrs. Chapman. They asserted that her present husband, for a valuable consideration paid by them to her, licensed its performance by them, and delivered to them the manuscript, which they say was the original one. They have adduced no evidence of the alleged bequest, or subsequent license, or of the payment of the alleged consideration. The assertion of Webster’s transfer to Silsbee is not only unsupported by proof, but is directly contradicted by the [354] testimony. The depositions of Mr. Taylor and Mr. Webster, moreover, entirely negative Silsbee’s alleged participation in the authorship; and show that the play was composed exclusively by Taylor, in whom, as we have seen, the proprietorship of it was revested in 1855.
One of the interrogatories of the complainant’s bill required the defendants to state fully, when, where, and how, they had obtained possession of this comedy, and how they claimed the right of representing it. Any technical operation in their favor of their own allegations responsive to this and other interrogatories of the bill is removed by the contradictory testimony which has been reviewed. Their answer, which has rendered this review necessary, is of no technical force against such evidence; and not having been founded, as to the most material points, upon any possible knowledge of their own, is of no moral opposing force.
If Mrs. Chapman was the duly qualified representative of Mr. Silsbee’s estate, and, with her present husband, licensed the performance of the play by the defendants, the license was of no effect whatever. Of this the defendants would seem to have been, at the time of the hearing, fully aware. They did not attempt to verify any writing as a manuscript, or copy of the manuscript, of the play, or offer any such writing in evidence. They thus wholly failed in their endeavor to show that they had rightfully represented the play from the manuscript, or that any copy of it had ever been rightfully in their possession.
The defence was confined, at the hearing, to a denial of the complainant’s right of maintaining her suit under the acts of Congress for the protection of literary property, or independently of those acts.
The consideration of the acts of Congress may be prefaced by the remark that the word copyright, and phrase literary property, though sometimes confounded, are not synonymous. The latter phrase has a more general signification than copyright, which signifies an exclusive right of an author [355] and his assigns to print his literary composition, and publish and republish it in print. A legislative enactment securing generally to literary proprietors a copyright for a limited period, but containing no special provision as to theatrical representation, does not, in the case of a dramatic literary composition, include the sole right of such representation. This, which the course of legislation on both sides of the Atlantic implies, was decided in Coleman v. Wathen, (5 D. & E. 245,) and Murray v. Elliston, (5 Barnw. & Ald. 657,) cited and remarked upon in 12 Ad. & El., N. S. 236, and 2 De G. & Sm. 675, 692. In the absence of any legislation for the special protection of dramatic literary property, an authorized public circulation of a printed copy of a drama for which there is a legislative copyright is a publication which legalizes an optional subsequent theatrical representation by anybody from such copy. But the mere adoption of the measures by which such a copyright may be secured has no such effect unless their adoption has been attended or followed by an actual publication in print.
The complainant had adopted the usual measures to secure to herself a statutory copyright for the United States. In so doing, she had observed all the statutory regulations on the subject, except the direction that a copy of the book be delivered to the clerk of the proper court within three months from the time of its publication. The intended meaning of the word publication, in this and other statutory provisions concerning copyright, is publication in print. The period, therefore, from which the three months would be computable, is not arrived. The complainant had thus observed every direction which could be complied with in the case of an unprinted book.
So far as any question under the acts of Congress was concerned, the citizenship of the parties in the cause was immaterial. The act of 15 th of February, 1819, gives to the Circuit Courts original cognizance, as well in equity as at law, of all cases “arising under any law of the United States, granting or corifirming to authors or inventors the exclusive [356] right to their respective writings, inventions, and discoveries.” This act concerns remedies, and not rights. Under the statutes which confer and regulate rights of literary proprietorship, the citizenship of the parties litigant was also unimportant. It sufficed, under, these acts, that the complainant was a resident of the United States, which was undisputed. The difficulty in her way was that Mr. Taylor, the author through whom her title was derived, was a non-resident alien. This difficulty presented the only question under the acts of Congress requiring particular consideration.
The act of 3d of February, 1831, repealed, with a saving of privileges then existing, the prior statutes concerning rights of literary property. The 9th section of this act, giving redress for the unauthorized printing or publishing of manuscripts, operates in favor of a resident of the United States, who has acquired the proprietorship of an unprinted literary composition from a non-resident alien author. But the word publish here again means publish in print. This — which is the only section enabling a proprietor, who derives his title from such an author, to assert any right under the act — gives no redress for an unauthorized theatrical representation. The other sections concern copyright.' They apply only to authors who, if not citizens, must be residents of the United States, and proprietors under derivations of title "from such authors. No other proprietor can obtain a copyright under the act.
' The only statute which affords redress for unauthorized theatrical representations is the act of 18th of August, 1856. This act applies only to cases in which copyright is effectually secured under the act of 1831.
Therefore, the complainant had no statutory right of redress.'
The remaining inquiry was, whether her suit could be sustained, independently of any legislation concerning dramatic or other literary property.
Under this head, as the defendants were citizens of Penn[357] sylvania, the general equitable jurisdiction of the court could be exercised if the complainant was a citizen of another state, or an alien.
At the commencement of the suit she was an alien, residing at New York. But she had previously filed a declaration of her intention to become a citizen of the United States. During the pendency of the suit, and before the hearing, she was naturalized. She was described, in her bill of complaint, as a citizen of the State of New York. This description of her, though correct at the time of the hearing, had not been correct when -the bill was filed. She should have been described in it as an alien. As the jurisdiction of the court was maintainable under either description of her, if true, the mistake was of such a character that an amendment correcting the misdescription would, of course, have been allowed, whenever asked. The case was heard and considered as if such an amendment had already been made.
The complainant insisted that, as the play had never been printed, her literary proprietorship of it entitled her to maintain the suit, independently of any statute.
The author’s proprietary rights for England and Scotland had never been transferred to her. The statutes of the United States for the protection of authors do not, like those for the benefit of inventors, expressly sanction transfers of limited local proprietorships of exclusive privileges. A writing, which is, in form, a transfer by an author of his exclusive right for a designated portion of the United States, would, therefore, at law, even under the statutes of copyright, operate as a mere license, and would be ineffectual as an assignment. (10 How. 194; 1 Wall, Jr., 339; 17 Com. B. 436, 437.) Whether an assignment by a foreign author of his whole right, for the entire United States, would fall within the same rule, is a question which might be discussed, if such an author could acquire a copyright, or by transfer, impart the privilege of acquiring one. (See 4 H. L. Ca. 992, 993, 940.) In the present case, where the foreign author had no statutory pro[358] prietorship, and could impart no privilege of obtaining one, his transfer to the complainant cannot be regarded otherwise than as only a partial assignment, upon which a suit could not be maintained at law in her own name. But, in a proceeding like the present, in equity, a limited local, or other partial assignment, if made, for a valuable consideration, by a person whose transfer of the whole interest would have passed the proprietorship, is carried into effect, whether it would have been effectual or not, at law. (3 Jur. 219; 11 Sim. 572; 5 Peters, 602; 3 Swanst. 393; 4 Mylne & Cr. 702, 703; 7 Sim. 109.) The. complainant, therefore, does not,- in this court, stand in any respect on a less favored footing than an author. That her asserted literary proprietorship is derived under one who was a non-resident alien does affect her case, considered independently of the statutes.
Here, we may remark, that the literary proprietorship of the principal composition included that of the additions to it which have been described as written, in pencil, on the complainant’s manuscript, and of such other additions as may have been made in writing. These additions, as literary accessions, were incapable of independent proprietorship. (Hatton v. Kean, 29 L. Journ. N. S. Com. Pls. 20; 7 Com. B. N. S. 268; Pothier Propriété, 170 to 175; Code Nap. 566, 567; and see the citations of other modern European Codes in Saint Joseph’s Concordance.)
' The rules of the law of accession, which have been thus applied, are applicable in favor only of such innocent parties as have not wilfully used the property of others. A wrongdoer can derive no benefit from the otherwise accessorial character of that which he converts to his own use. The publication of books may thus, for literary piracy, be suppressed, when the pirated matter is accessorial only to former compositions for which there could be no copyright, and constitutes only a very small proportion of the whole contents. Thus, as against a wrongdoer, that which is an accessorial part of a whole, may be regarded as a material, or even vital, part. (3 Swanst. 680, 681; 5 Ves. 709, 16 Com. B. 459; 3 [359] Mylne & Co., 738, 736, 737.) The distinction will hereafter be found important.
In whose handwriting the additions were, does not appear, and is not material. That they were conceived and suggested, if not written, by Mr. Jefferson when engaged in assisting the complainant in bringing out the play, is indisputable. If their accessorial character could be excluded from consideration, his relation to her as his employer would have rendered him incapable of acquiring in them an independent proprietorship of his own. The duties of theatrical performers to their employers are, in this respect, like 'those of artists retained under a standing engagement in any other professional service. Where a female opera singer had engaged with a theatrical proprietor to sing for three months at his theatre, and not sing elsewhere during that period, without his consent, Lord St. Leonards said: “The engagement to perform for three months at one theatre must necessarily exclude the right to perform at the same time at another theatre. It was clearly intended that” she “was to exert her vocal abilities to the utmost to aid the theatre to which she engaged to attach herself.” He was “of opinion that if she had attempted, even in the absence of any such negative stipulation, to perform at another theatre, she would have broken the spirit and true meaning of the contract as much as” in the case of “the contract into which she” had “actually entered.” (1 De G., Macn. & G. 618, 619. See 6 De G., M. & G. 230.) A calico printer discharged his head colorman, who sued him in trover for a book of entries of processes of mixing the colors used in his business. The book had been kept by the plaintiff while in the defendant’s employment. It contained entries of many processes which were of the plaintiff’s own invention. The decision was that he could not recover. Heath, J., said that though there might be inventions of the plaintiff in it, yet they were the property of the master. Chambre, J., said that the master had a right to something beside the mere manual labor of the servant in the mixing of the colors; and though the plaintiff invented them, yet they were to be used for his [360] master’s benefit. (4 Taunt. 770.) If it be suggested that literary addition, or adaptation, is no part of the general duty of dramatic performers, and that there is no particular exception in the case of an unprinted play never before performed, the objection may, in this case, be disposed of without considering the question suggested. Here, Mr. Jefferson, while in the general theatrical employment of the complainant, engaged in the particular office of assisting in the adaptation of this play; and made the additions in question in the course of his willing performance of this duty. She, consequently, became the proprietor of them as products of his intellectual exertion in a particular service in her employment. Where an inventor, in the course of his experimental essays, employs an assistant who suggests, and adapts, a subordinate improvement, it is, in law, an incident, or part, of the employer’s main invention. (1 Com. B. 551.) In a case of a musical composition, a person who adapted words to an old air, and procured a friend to compose an accompaniment, acquired a copyright, both in the words and the accompaniment. (7 Com. B. 4.) The direct application of the principle to literary compositions, their parts, additions, and accessions, is too familiar to require more than a reference to some of the authorities. (2 L. Journ. Ch. 90, 2 S. & S. 1; 16 Com. B. 459; 3 Jur. 219; 5 Carr. & P. 58; Merlin Questions de Droit, “Contrefaçon,” § II, vol. 2, p. 659; “Propriété Literair,” § II, vol. 6, p. 498, 4th ed., and Hatton v. Kean, cited above.)
Therefore, so far as the question of literary proprietorship, independently of the statutes, may be concerned, Mr. Jefferson’s written additions will require no separate or distinct consideration.
The play having never been printed, the complainant, as its literary proprietor, could, independently of the statutes, have maintained her suit, if the defendants’ theatrical representation of it had not been preceded by her own. If the previous performance of it at her theatre had been the means of enabling the defendants fairly to bring it out at their theatre, the suit [361] could not have been maintained. But the point for decision was, whether her prior performance, as it had not been the means through which they were enabled so to do, defeated her .suit.
Under the peculiar circumstances of the case, this point could, as I thought, and still think, be decided independently of any question of literary proprietorship. In the administration of equitable jurisprudence, improper disclosures of the knowledge of primary results of mental development, whether the contents of literary compositions, or oral discourses, or .secrets of inventors, or improper disclosures of knowledge acquired in professional relations, or in those of service or agency, are prevented and redressed on principles of general applicability. (3 Law Journ. Ch. 209, 213, 219; 1 Hall & T. 28; 2 De G. & Sm. 652; 1 Hall. & T. 1; 1 Macn. & G. 25; 7 Pet. 317 to 322; 2 Bos. & Pul. 630, 577, 578; 2 Mees & W. 558 to 560; 2 Meriv. 450, 451; 1 Vern. 61; 3 Meriv. 157; 1 Jac. & W. 394; 1 Sim. & Stu. 398; 9 Hare, 241, 267; 21 L. Journ. Ch. N. S. 248; 9 Eng. L. & Eq. 182; 9 Sim. 196; 10 Sim. 135; 15 Sim. 378; 1 Hall & T. 116; 2 Phillips, 777, 778.) In the exercise of this equitable jurisdiction, rights founded in personal and professional relations of confidence are protected independently of any question of the existence or continuance of proprietary right. Preventive protection under this head is afforded in proceedings against persons not themselves parties or immediate privies to the breach of confidence, A person who has not acquired through it an independent subsisting equity of his own, is not permitted by a court of equity to derive any benefit from it, or retain any benefit so derived.
In the present case, the complainant has acquired all such rights in the principal composition as were formerly Webster’s. The defendants’ assert in it no right, except as derived under Silsbee. The case, therefore, as to the copy of it which Silsbee had, is the same as if Webster and Silsbee were now the [362] litigants. The defendants have used this copy, though Silsbee had no possession of it except for use in his professional service to Webster. They procured Mr. Jefferson’s additions through his breach of professional duty to the complainant as his employer. As to these additions, the direct breach of confidence was between Jefferson and the complainant. But, according to many of the authorities which had been cited, the defendants, having procured, or availed themselves of, Mr. Jefferson’s violation of his duty to the complainant, stand, in respect of it, in his place. We have seen that theatrical performers, in the relation of Silsbee to Webster, or of Jefferson to the comr plainant, owe to their employers no less fidelity than artists, or agents, retained in any other permanent, or temporary, professional service.
Though the complainant’s literary proprietorship of the play in question had not been sustainable, she had the only manuscript from which a first performance of it could be lawfully made. Having the advantage of this priority, she was known to be desirous of retaining the exclusive dramatic representation of the piece. In any competition with professional rivals, this priority, and the possession of the manuscript, gave to her a fair advantage, which, without any literary proprietorship, might have been retained for some time, if not indefinitely. In regulating the police of her theatre, she could have prevented reporters from taking down the words of the play during its performance, and could have excluded persons unwilling to acquiesce in such conditions. (Ambl. 694; 17 Cobb. Parl. Hist. 1094; 2 De G. & Sm. 692; 13 M. & W. 838.) The only fair means' by which others could have obtained the words, were, through their impression upon the memory of some person whose constant attendance at her performances of the play might, at length, enable him, elsewhere to repeat or to write out its language. If, through such attendance of one or more persons, the words of unprinted plays could be obtained accurately, the method of obtaining them would not be expeditious or economical. Its adoption has not, in modern experience, been usual. The de[363] fendants, as the complainant’s professional rivals, did not compete fairly with her when they used any other means of abridging the duration of her legitimate advantages. This remark applies, at all events, to the means which were, in fact, used.
The remark might, under proper pleadings,’ have been applicable to the use both of the copy which Silsbee had retained, and the additions which the defendants procured from Jefferson. The case would then, upon the merits as disclosed by the answer and proofs, have been a simple one. But, the complainant’s bill is not so framed, that she can, independently of the question of literary proprietorship, obtain a decree founded upon the defendant’s use of the copy retained by Silsbee. The bill contains no averment of the surreptitious, or other, former, or present, possession by any one of a copy of the manuscript, or of the use by the defendants of such a copy. Except the averment that the defendants represented the play publicly without the complainant’s consent, and the interrogatory quoted above, the bill contains nothing on the subject. A decree for a complainant cannot be made upon a fact not averred in the bill, though it may be disclosed in the defendant’s answers to the interrogatories of the bill. (3 Swanst. 687, 689; 10 Wheat. 188; 1 Pet. C. C. 383, 384; 1 Gall. 385, 386; 3 Barb. Ch. 51.) The complainant, when this objection was taken, had an opportunity to amend her bill in this particular, but made no application for the purpose. The only advantage to her, therefore, of the disclosures as to the copy retained by Silsbee, and the use made of it, is in the proof which these disclosures afford that the defendants were not enabled to represent the play merely from its having been publicly performed at her theatre. Whether, on the footing of literary proprietorship, this would suffice to sustain her suit, is not at this moment, the question. Independently of such proprietorship, her suit cannot, upon this bill, be sustained on the mere ground of the improper use of this copy.
The complainant is, however, under no such difficulty as to the improper use of the additions procured from Jefferson. [364] Her bill avers that the defendant Clarke obtained the principal parts and the language from Jefferson, who was in her employment as an actor, and who performed one of the characters in the comedy. Though her claim of an exclusive right had not been sustainable, she was entitled, in her competition with professional rivals, to the co-operation and support of every person employed by her within the walls of her theatre. The implied confidential restriction which ought to have prevented the disclosure of the words of her new play by performers of her own. theatrical company, was of the greatest importance to her in this competition. Yet, Mr. Jefferson communicated his additions to Mr. Clarke, who introduced them into his own performance. The unwritten additions, which may have been included, could not be the subject of literary proprietorship. But the equitable jurisdiction which we are now considering is' exercisable on grounds which are independent of proprietary right in the party injured, or in any other person. The jurisdiction has been thus exercised in the cases of an oral didactic lecture, and of an unpatentable or unpatented invention. (3 L. Journ. Ch. 209; 9 Hare, 241, 258, 259.) The doctrine in question applies, therefore, alike to the unwritten and written additions, whether those in writing were the subject of literary proprietorship, or not.
If the success of the play is attributable, in any principal degree, to the additions, alterations, and curtailments, by which it was adapted at New York to dramatic representation, the same equitable doctrine applies to it as a whole, just as it was acted there, including the former composition so far as retained, and the additions>, written and unwritten, if any of them were in truth unwritten. This brings us to the inquiry, how far the additions, as the particular subject of Mr. Jefferson’s breach of his duty, should be regarded as having had a principal, as distinguished from a subordinate and insignificant influence, in causing the success of the performance. If they cannot safely be rejected from consideration as trivial and insignificant, both in their character and in their effect, the cause may be decided on the ground of breach [365] of confidence, independently of the question of proprietary right.
With reference to this play, the defendants describe such “assistance and authorship” as their answer attributes to the late Mr. Silsbee as “invaluable.” Their language, though, so far as the play is concerned, misapplied as to him, tends to define the particular character of it as a drama. The language seems to have been less inapplicable to Mr. Jefferson, of whom, as a member of the complainant’s company, the talent and experience were, or should have been, at her command. Nevertheless, their answer in certain passages has a tendency to disparage Mr. Jefferson’s assistance to them, as though the additions or adaptations obtained through it had been of trivial value. These passages of the answer are, however, inconsistent with other statements in it, and are contradicted by the defendants’ own conduct, in procuring and using the adaptations. This conduct pre-' eludes them from denying, with any fair show of reason or justice, that for the purpose of adapting the play favorably to the stage, the additions, curtailments, and alterations were improvements at least upon the author’s composition. That they probably diminished some difficulties which had prevented the play from being acted in England, and removed objectionable features which, for local reasons, would have prevented the success of it in the United States, is perhaps not stating the case in its full strength. As the play was performed, the success of it, as a whole, was complete. But from what occurred in England and in this country, we may infer that its performance without the adaptations might have resulted in a failure. The author’s manuscript had, in England, been cast aside for six years. In all this time, the copy which Mr. Silsbee had retained was unthought of and useless. The defendants having this copy in their possession, with no scruples as to using it, had not been willing to act the play from it, without the New York adaptations. The plot was not theatrically novel. The success of the piece was dependent upon the scenery and incidents, and the viva[366] city and humor of the dialogue. Mr. Hallam, following a suggestion of Collier, thinks that, in modern theatres, the use made of scenery has diminished, in certain cases, the necessity for exercising the creative powers of a dramatic author’s imagination. Such may be the case peculiarly with a light piece of this class. The synopsis of scenery and incidents in the play-bill shows that this was, in the opinion of those who brought it out, not less important than the dialogue. To these arrangements, however, the dialogue required adaptation. Some of the additions in pencil to the author’s manuscript indicate a self-confident, but not imprudent, boldness, which probably was the result of a combination, in Mr. Jefferson, of histrionic talent with a matured experience in the production of comic effect. We, however, cannot estimate their importance or value from anything so surely as from the conduct of the parties and the success of the play. Schlegel asks, “How does a dramatic work become theatrical or fitted for the stage?” and answers, “In single instances it is often very difficult to determine whether a work possesses such a property or not. It is, indeed, frequently the subject of great controversy, especially when the self-love of authors and actors comes into collision. Each shifts the blame of failure on the other.” He says of “theatrical fitness,” that much must “always depend on the capacities and humors of the audience, and, consequently, on the national character in general, and the particular degree of mental culture.” In a certain line of the dramatic profession, a particular actor, or stage manager, or assistant, may be endowed with a peculiar faculty for the adaptation' of a piece to such humors and capacities. For a drama like that in question, Jefferson may have possessed this faculty. Whether the defendants could, without his assistance, have been able to bring out the piece at their theatre with any probability of success, is thus an inquiry which cannot be safely prosecuted with a view to an absolute answer. That they availed themselves of his aid suffices to convince us that they could not have otherwise brought it out with an equal prospect of sue-[367] cess. Here the question is not so much what number of words he communicated, or what the words were, or what was their character, as what effect they produced. The purpose of the defendants is, moreover, to be regarded. We have seen that it would not have been attained by a partial or incomplete imitation of the play as it had been successfully brought out by the complainant. Their purpose was to bring out at their theatre a complete imitation of it as a whole. By taking advantage of the breach of confidence committed by Mr. Jefferson, they enabled themselves to effect this purpose. His additions were, therefore, so far as the defendants were concerned,' not a secondary, but an essential, part of the play as performed.
But, according to the defendant’s answer, these additions were principally gags and minutiae of stage effect, most of them old and well known to the dramatic profession, and a very small proportion of them original. The language of the answer imports that they were not wholly of the character thus described. The defendants’ counsel, relying, however, upon the general tendency of its language, has urged that the effect of such adaptations and additions, in promoting the success of the play, must have been insignificant. There is no safe, legal, or equitable standard by which effects of wrongful acts, can, in general, be thus qualified or apportioned for the benefit, or exemption,. of parties or privies to their commission. The foregoing reasoning has, in favor of the defendants, already, perhaps, too much relaxed the salutary rigor of the rule which, in general, prevents wrongdoers from succeeding, in attempts to apportion, for their own benefit, the unknown consequences of such acts. The result of this case would not be varied if we could safely assume, as, however, we cannot, that the additions consisted principally in mere adaptations of gags which, as formerly applied in other plays, were already familiar to persons of experience in the dramatic profession.
A gag, in dramatic language, is a word, a sentence, or a passage of two or more sentences, not in a drama as corm [368] posed by the author, but interpolated, and uttered on the stage by the player. Gags, in general, are violations of dramatic propriety. But, theatrical regulations which prohibit them are not always enforced with strictness, and are sometimes much relaxed as to comedians in public favor. Sometimes gags are sanctioned by the manager’s approval at the rehearsal of a play. They are, occasionally, in comedies of the lighter kind, licensed more or less, if not encouraged, by dramatic authors, who attend rehearsals of their own plays. In England, as the testimony proves, these authors, after the characters have been cast, frequently, beforeany rehearsal, read their plays, in the manager’s presence, to the company of performers. On these occasions,, or at rehearsals, gags may be sanctioned by both author and manager. Sheridan, when he was author and manager,, probably sanctioned some of the gags with which one of his most popular pieces has, to this day, been usually performed. In the play now in question, where the first scene closes on the characters gathered around the Yankee in England, who-asks, whether they will have “a cobler, or a julep, a gin-sling, a cock-tail, or a chain lightning?” the author, in his manuscript, adds, “winds up, with a catalogue ad libitum of the names and merits of American drinks.” To exclude gags fastidiously from other parts of such a play as this would oppose the apparent tendency of the author’s own plan of its representation. A strict adherence to his written dialogue would, probably, therefore, in many of the scenes, have been, even in his opinion, less useful than some of Mr. Jefferson’s additions. The judicious introduction by a comedian of his “tact and talent” of gags happily adapted for the production or improvement of stage effect, may have prevented the failure, or greatly promoted the success of the play.
The defendants’ remark that the gags “ were mostly old,, and well known to the” dramatic “profession,” if it had been made with any specified application, and had been verified by proof, would have been of no importance. The judicious introduction of matter whose chief or only novelty consists [369] in its happy adaptation to the production of stage effect, may contribute more to that popularity of a light comedy, which secures profitable repetitions of its performance, than polished wit, refined humor, or classical or courtly sarcasm, literary adaptation is legally recognized as a distinct branch of the dramatic author’s profession. It varies in degree from that aid which is the mere accessory of another’s work to that production which constitutes absolute authorship. (17 Com., B. 427; 7 Com., B. N. S. 268; 29 L. Journ., N. S. Com. Pls. 20.) The success or failure of a play may depend upon that which is only accessorial, or upon dramatic adaptation which is not even literary. Modifications of assistance to dramatic effect may be various, almost infinitely so. Most important aid may sometimes be furnished by the repetition, with a new application, of that which has, under other theatrical circumstances, been said or done before. The extent or value of the benefit which may be derivable from such adaptations cannot always be measured very precisely, for practical purposes, by any standard of mere literary criticism.
In the case of a drama which has been printed and published, the subsequent approval of a gag by the manager of the only theatre at which the drama has been represented, and the sanction or adoption of the same gag by the author, will not render it, as a legal accession, a part of his dramatic literary composition, though it has been, with his concurrence, inserted in writing in the manuscript from which the drama was, before such insertion, printed. Much less can ordinary gags, not thus inscribed or sanctioned, become accessions to the composition. If unwritten gags could be a subject of proprietary right, as they never can be, they would, as between the dramatic author and the player uttering them, be the player’s. As between such a player and the manager or proprietor of the theatre at which he is engaged, if the drama has already been published in print, or, though unprinted, has been SO' represented on different stages that there is no theatrical rivalry, or competition for its exclusive performance, the friendly communication of the gags by [370] the player to members of his profession engaged at other theatres, would not, in ordinary cases, violate any confidence resulting from his implied conventional relations to his own employer. The defendants, in their answer, say, that among players interchanges of such professional courtesies are usual. They may not be improper in such ordinary cases. But this was, in every respect, a different case.
I was, therefore, of opinion that the means used by the defendants to enable themselves to imitate the complainant’s performance of the play had been such as to entitle her to a decree, independently of the question of her literary proprietorship, on which I avoided the expression of an opinion.
If the defendants, in taking advantage of Mr. Jefferson’s breach of duty to his employer, had been innocent parties, not aware of his confidential relation to the complainant, the jurisdiction of the court, so far as exercisable independently of her literary proprietorship, would have been preventive only. As, however, they were privies to and participants in his breach of confidence, if not the procurers of it, they were liable to make her pecuniary compensation. But, though the jurisdiction had been merely preventive, the fund in court would, in this case, have been answerable for the complainant’s indemnity. Her application for a preliminary injunction was refused upon the deposit of this money to secure to her an indemnity if the defendants’ continued performance of the play should be adjudged a violation of any right entitling her to an injunction. The defendants having continued its performance, this fund is answerable for all damages, not exceeding its amount, sustained by her from such continuance. Out of the fund, she is thus entitled to pecuniary relief, independently of any question of the defendants’ privity to the breach of confidence, and independently of any question of her own literary proprietorship.
The amount of this fund was fixed with reference tó that which the complainant, before suit, had asked as the price of a license authorizing an exclusive or unrestricted representation of the play by the defendants in Philadelphia. When [371] this price was asked by her she asserted a claim of statutory copyright. This claim is not maintainable. Had she known then that her literary proprietorship was precarious from its dependence upon effects of publication, she probably would have been willing to grant such a license for a lower price. She named the price, not as the consideration of a proposed compromise, but as her own estimate of the value of the license which a secure copyright would have enabled her to give. There is, consequently, no probability that she will eventually recover an amount which, with the addition of costs, will equal the sum in deposit. It is true that, as her offer was not accepted, she is not precluded from proving, if she can, that a license from her would have been worth more than she asked for it, or that she has in some other mode sustained loss to a greater amount. Her counsel say that the success of the play has been much greater than was expected when she named this price, and urge that the extraordinary excess of profit should neutralize the effect of her proposal. Proof of the actual profits might, for this purpose, be proper for the consideration of a jury. But such proofs might be of little avail against the effect of her own estimate of the value of a license.
The Court, in announcing the foregoing views, added that an issue to determine the amount of the complainant’s damages would be ordered, if asked by either party, and that, if neither party asked it, the case would be referred to a master to report the proper amount of her compensation. The court strongly recommended a settlement of the controversy.
The cause formally stood over for the amendment in the description of the citizenship of the complainant. This amendment was not made until July, i860. When it was rpade, the defendants filed an addition to their former answer, and also filed a plea. The addition to the answer was not of such a character that it could regularly have been filed in so late a stage of the cause; and it was not relevant, in anywise, to the [372] amendment of the complainant’s bill. But, upon a special reason, suggested by the counsel of the defendants, they were allowed to make the addition as an amendment of their former answer.
The plea which they filed alleged that the complainant was, when the suit was instituted, the wife of a person of a given surname, whose Christian name was not given. He was described as now in Australia; but his calling or business was not specified, nor was his identity in any other manner determined. There was no allegation that her asserted marriage was a newly-discovered fact. On the contrary, the defendants, in the course of examination of a witness, had, more than a year previously, made strenuous efforts to prove that she was married to a person of the surname given in this plea. Their counsel, however, insisted that, as the complainant had amended her bill, they were not only entitled to answer anew, but were, under the 39th rule of equity practice, entitled also to plead, notwithstanding their former answer and present additional answer.
An amendment of a complainant’s bill, except so far as it may introduce a new or different case, has not the effect of opening the pleadings in an equity suit. The Court looks back through the pleadings, to ascertain whether, and how far, the amendment may have introduced such a case. So far as it may have been introduced, the defendant may demur, plead, or answer anew. Unless a new case is presented by the amended bill, a defendant’s former answer to the original bill overrules any plea which he may interpose after the amendment. The 37th and 39th rules do not apply so as to introduce a contrary practice in this respect. Their purpose cannot have been to permit a defendant, in such a case, to introduce, in a late stage of the cause, matter which might have been insisted on by way of plea when the former answer was filed. If this were, in general, otherwise, matters of abatement and objections to the character of the parties are expressly excepted from the operation of the 39th rule, which is, therefore, inapplicable to this plea. For these reasons, and because the plea [373] wanted the requisite specification, and omitted certain usual averments, and was not properly verified, the complainant’s counsel moved that it should be taken off the file. The Court permitted the complainant, without prejudice to this motion, to set the plea down for a hearing. It was then, upon argument, overruled.
In the interval which had preceded this final adjustment of the pleadings, I had considered the question of the complainant’s literary proprietorship, as it had been asserted independently of the copyright laws. The case not having been settled by agreement, and an issue appearing to be necessary, the continued forbearance to express an opinion upon this point seemed improper, as its expression might perhaps have some influence in determining the pecuniary result of the issue. In stating my views of the question, the order in which the subject has been investigated privately for purposes of self-instruction will be pursued.
Proprietorship is a certain or contingent exclusive right of unlimited or limited profitable use of an ascertainable subject, corporeal or incorporeal. Proprietorship, thus defined, is compounded of the proprietor’s beneficial rights, and his right of excluding other persons from the use or profit. Any such use as may be of actual or possible advantage or convenience to himself, or any other person, is profitable. When the proprietor’s right of excluding others from such use, or from the profit of it, is unlimited, as to persons and purpose, the proprietorship is absolute. When the right of exclusion is limited, either as to persons or as to purpose, the proprietorship is qualified. It is ended when the right of exclusion ceases wholly. The question is, how far the property called literary is within the general doctrines of the law of proprietorship. Though not an anomalous it is a peculiar subject of these doctrines.
A literary composition is an original result of mental production, developed in a series of written or printed words, [374] arranged, for an intelligible purpose in an orderly succession of expressive combinations. The person by whom the composition is primarily thus developed is its author. An author and his assigns are included in the meaning of the general phrase, literary proprietor.
The uses of the composition consist in, or depend upon, actual or potential communication of the knowledge of the contents.
The communication of such knowledge may be confidential. It is of this character whenever conventional or other personal relations of the receiver to the maker preclude any rightful ulterior communication of the knowledge acquired. The simplest example, where the relation is conventional, occurs in the case of a loan by a literary proprietor of a book, of which the contents are unknown to others. (See 4 H. L. Ca. 919, 920.) This is a bailment of it, to be read by the borrower, who receives it under an implied confidence, precluding his use of it for any other purpose. (2 Ld. Ray. 915.)
More extended and complicated cases of implied confidence, where the breach of it has been redressed or prevented in the course of the administration of equitable jurisprudence, have been mentioned under a former head. Other examples will hereafter be mentioned incidentally.
Lord Mansfield and Willes, J., in 1769, (4 Burr. 2398, 2399, 2395, 2396, 2312,) and Aston, J., in 1774, (17 Cobb. Parl. Hist. 980,) were of opinion that, even in the absence of confidential relations, rules of decision on questions of literary proprietorship might be deduced from principles of “private justice, moral .fitness, and public convenience.” But Lord Eldon discarded this doctrine. (3 L. Journ. Ch. 209.) It has been criticised and condemned by De Grey, C. J., (17 Cobb. P. H. 990;) Lord Camden, (Ib. 998;) Pollock, C. B., (4 H. L. Ca. 935, 936;) and Lord Brougham, (Ib. 968.) Some of thesé judges conceded that what was manifestly against the public interest might, for that reason, be rejected from the law. But they all concurred that those who administer jurisprudence cannot on this, or any other subject, create and define rights merely because, in their opinion, such rights ought, according [375] to justice, propriety, and convenience, to exist. Rules of decision on the subject of literary property must, therefore, be sought in doctrines of the common law, or must be traced in principles from which its rules may appear to have been derived.
The present subject of consideration is literary proprietorship alone, regarded as independent of any question of confidential relations.
The ordinary definition of literary property, as the exclusive right of the proprietor to multiply copies of the composition, is, for general purposes, too narrow, because, where the proprietorship exists, the circulation of copies is not the only specific method in which the subject may be profitably used. The definition is thus too narrow for the specific purposes of the present case,' where the question to be decided arises from the use of a literary composition in another mode — that of theatrical representation. Literary property may be described as the right which entitles an author and his assigns to all the itse and profit of his composition to which no independent right is, through any act or omission on his or their part, vested in another person.
This definition, or description, cannot be applied without a specification of the profitable uses of a literary composition. Their specification includes all such methods of communicating a knowledge of the contents as are not exclusively confidential.
Such communications are effected by reciting or audibly reading the composition, or by circulating it. The recitation, or lecture, or circulation, may be private or public.
A recitation or lecture before a select audience is private, and before an indiscriminate audience, public. This distinction determines the difference between private and public theatrical representation. Such a representation of a dramatic literary composition includes its recital.
A circulation is an act by which a literary proprietor parts with possession of the original manuscript, or a written or printed copy, for any purpose not exclusively confidential. The original manuscript, however, is very seldom circulated. [376] The distinction between the private and public circulation of copies is differently determined, as they are manuscript or printed.
Writing is a method of originally developing the composition, and of adding copies made singly, letter by letter. Printing is a process of multiplying the copies, by sheets.
Thus the difference is that between multiplication and addition.
Human means of increasing the number of copies by writing are extremely limited. By printing, they may, on the contrary, in the words of Lord Cranworth, be multiplied indefinitely. (4 H. L. 833.) The books printed by those who first publicly practiced the typographic art in Europe usually contained an advertisement that they were not written, as all books had previously been, but were made by a new invention, whereby the several sheets were stamped at once, and not made line by line as formerly. (See Dibd. Typ. Antiq. I. 20.) Judge McLean has truly said, that manuscripts, in modern times, cannot.be of general use. (4 McL. 304.) In 1519, as we learn from a book published in that year in England, printing had already almost ruined the business of the scribes. (Dibd. II, 480.) In 1693, it was judicially said, that “in primitive times, before printing was invented, writing was found to be an overt act, and made high treason; therefore, printing was, more manifestly, an overt act.” (12 How. St. Tr. 1248.) In literature, and in law, every manuscript copy requires a separate authentication; and no such copy can be so authenticated as to become the substitute for an accessible original. But, for ptirposes of circulation, the manuscript from which an authorized edition is printed has discharged its office when the copies are struck off; and every copy of the impression is, for such purposes, an authentic counterpart of the others. The printed copies have been judicially designated as all originals. (32 How. St. Tr. 82 to 86, 2 Stark. Rep. 130, 114.) Legal as well as practical differences have thus resulted from the disuse of writing and substitution of printing, as the ordinary method of making copies for general circulation. The judicial [377] recognition of these modern differences has not been attended with any disregard of the rules of ancient jurisprudence. But the practical application of these rules has been modified in adapting them to the change of usage.
The circulation of written will be considered before that of printed copies.
The distinction between a public circulation of written copies, and a restricted or private communication of their contents, was, for some purposes, recognized before the use of printing. (Wilkins Conc. iii, 317, A. D. 1408-9; Middleton’s Dissert, note (u,) A. D. 1410; also in Ames’ Typ. Ant. 64; Herbert, 86, and Dibd. I. 321.
Footnotes
1 E.D. Pa. 343 (Keene v. Wheatley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.